Criminal Justice Act 2007 brought into operation

The Tánaiste and Minister for Justice, Equality and Law Reform, Mr. Michael McDowell has signed an order bringing the Criminal Justice Act 2007 into operation.

The Tánaiste said "These new powers are necessary to deal with the new challenges presented by gangland activity. As a result of these measures, the Gardaí, the prosecution services and the courts will be in a better and stronger position to respond to the new challenges. The new law is reasonable and proportionate and contains numerous verifiable safeguards. I am disappointed not to have had more support from the Opposition parties in bringing forward these essential provisions."

The Act became law on 9 May following signature by the President and, following consultation with the Garda Síochána and the Courts Service, the order signed by the Tánaiste brings 54 sections and two Schedules into operation either with immediate effect or, in some cases, with effect from 1 July next.

Bail

The Act introduces a new requirement whereby applicants for bail may have to provide a statement of their means, their previous criminal record and details of any offences committed while previously on bail.

It also provides that a Garda Superintendent may give an opinion that bail should be refused on the grounds that the applicant is likely to commit a serious offence if granted bail.

The prosecution authorities are being given the right to appeal against decisions to grant bail or against the conditions attaching to it, where granted.

Several changes are made to the technical rules relating to the operation of bail. These address, inter alia, concerns expressed by the Comptroller and Auditor General and by the Public Accounts Committee.

Sentencing

Repeat offenders : anyone convicted of an offence listed in Schedule 2 to the Act and who has been sentenced to at least 5 years imprisonment for that offence and who, while still in prison for the first offence or within 7 years after release from prison following the first offence, commits a further offence from that Schedule will be subject to a mandatory minimum sentence equivalent to at least three – quarters of the maximum sentence for the second offence (or at least 10 years where the maximum is life imprisonment), unless the court considers it would be disproportionate to do so.

Anyone convicted of an offence on Schedule 2 may, in addition to the term of imprisonment, also be subject to post – release supervision orders for a period of up to seven years after release. They may be subject to a ‘monitoring order’, whereby they are obliged to inform the Gardaí of their residence and any changes in residence, or a ‘protection of persons order’ which is designed to prevent harassment or intimidation of witnesses or other persons.

The Act provides further guidance in relation to the circumstances when the mandatory minimum sentences for certain drug trafficking offences and firearms offences are to be imposed.

Right to Silence

The Act sets out clearly the circumstances where a court may, in the case of all arrestable offence (i.e. ones having a penalty of 5 years imprisonment or more), draw inferences from an accused person’s failure to account for certain facts or objects or fails to mention while being questioned anything he or she later seeks to rely on in his or her defence.

In arriving at its decision, the court can take account of when the account was first given by the accused.

The Act sets out a comprehensive range of safeguards which must be observed before an inference is drawn. These include:

a person may not be convicted ‘solely or mainly’ on an inference alone, corroboration from other evidence is required,

the account required from the accused person must be one that is ‘clearly’ called for by the circumstances involved,

the person must first be cautioned in clear language and must be given a reasonable opportunity to consult with a solicitor before deciding whether to answer the questions from the Gardaí,

the interview must be video recorded (unless the person declined to have it recorded),

Taking of Samples, Statements, etc

The Act provides that a court may admit in evidence a recording (video or audio) of an interview with an accused, or a transcript of such a recording, instead of the formal written and signed statement currently required.

It will no longer be the case that arrested persons will be given a copy of the recording of their interview: in future such recording will be provided only to those who have been charged and only where a court authorises the giving of the tapes.

Fingerprints, palmprints and photographs taken under the Criminal Justice Act 1984 may be held indefinitely, but a mechanism is provided for individual requests to the Garda Commissioner for their destruction.

The use of reasonable force in the taking of fingerprints, palmprints and photographs (with substantial safeguards) is permitted.

Detention Periods

Detention for up to seven days in the case of four particular offences is permitted.

The offences are: (i) murder involving the use of firearms or explosives, (ii) murder of a garda or prison officer (formerly known as ‘capital murder’), possession of a firearm with intent to endanger life, (iv) kidnapping / false imprisonment involving the use of a firearm.

Like the arrangements for detention for up to seven days under section 2 of the Criminal Justice (Drug Trafficking) Act 1996, the detention must be authorised in phases, it comes under judicial supervision after 48 hours and a person may not be held for any longer than is necessary for the investigation of the offence for which he or she was detained.

New Offences

New offences of possession of an article or cash over €5,000 for the purposes of the commission, preparation, facilitation or instigation of specified offences are created.

The offences include murder, kidnapping, serious assaults and drug trafficking.

The new offences carry a penalty of up to 5 years imprisonment.

The Tánaiste concluded "The new Act, taken together with the changes made in the Criminal Justice Act 2006 in relation to, for example, the admissibility of witness statements will go a long way towards redressing the balance in favour of the law abiding communities who are daily threatened by gangland activity.

I look forward to the introduction of further measures to assist in this ongoing battle against gangland crime, such as the establishment of a DNA database. I have already obtained Government approval for the drafting of legislation on a DNA database."